THAT DIFFICULT DISTINCTION BETWEEN AN EXPERT WITNESS AND AN ADVOCATE

In AAW -v- The Secretary of State for the Home Department [2015] UKUT 673 (IAT) Upper Tribunal Judge Southern made some telling observations on the role of an expert. The judgment is of general interest in relation to the role of an expert. In particular the risk of an expert being perceived as taking up the cudgels as an advocate rather than providing independent assistance to the court.

“… a witness who does not engage with material facts or issues that might detract from the view being expressed risks being regarded as an informed advocate for the case of one of the parties to the proceedings rather than an independent expert witness.”

“… the assessment of the reliability of a source is a task for the Tribunal and not for a witness offering evidence to it and, if the sources are not revealed, and not even the notes kept of any conversations with those sources are produced, it is hard to see that very much weight can be afforded to views founded upon information provided by such sources.”

THE CASE

The applicant was appealing a decision to deport him to Magadishu, arguing that he would be subject to ill-treatment and be living in conditions such as to amount to infringement of Article 3 of the ECHR. In support of that argument he put in the evidence of an expert on conditions in Magadishu.

CONSIDERATION OF THE EXPERT EVIDENCE

Evidence of Ms Mary Harper

Ms Harper, who describes herself at the head of her reports as:

“BBC Africa Editor and Somalia Expert

Fellow of The Rift Valley Institute and the Heritage Institute of Policy Studies

Author of Getting Somalia Wrong? Faith, Hope and War in a Shattered State”

has produced two reports for this appeal. The first is dated 4 March 2015 and runs to 22 pages and the second, an Addendum to the first report, is dated 14 October 2015 and is produced in response to written questions posed by the respondent arising from the first report.

Given the challenge raised by Mr Jarvis to the objectivity of Miss Harper’s evidence, before descending into a detailed examination of those reports it is helpful to look at what is required of an expert witness.

In MOJ & Ors the Tribunal said this:

“Thus in the contemporary era the subject of expert evidence and experts’ reports is heavily regulated. The principles, rules and criteria highlighted above are of general application. They apply to experts giving evidence at every tier of the legal system. In the specific sphere of the Upper Tribunal (Immigration and Asylum Chamber), these standards apply fully, without any qualification. They are reflected in the Senior President’s Practice Direction No 10 (2010) which, in paragraph 10, lays particular emphasis on a series of duties. We summarise these duties thus:

(i) to provide information and express opinions independently, uninfluenced by the litigation;

(ii) to consider all material facts, including those which might detract from the expert witness’ opinion ;

(iii) to be objective and unbiased;

(iv) to avoid trespass into the prohibited territory of advocacy;

(v) to be fully informed;

(vi) to act within the confines of the witness’s area of expertise; and

(vii) to modify, or abandon one’s view, where appropriate.”

A witness, if put forward as an expert witness, will not be treated as such if he or she does not meet the requirements demanded by the Senior President’s Practice Direction. That does not mean that his or her evidence falls to be disregarded, but any opinion offered that is unsupported by a demonstration of the objectivity and comprehensive review of material facts required of an expert witness is likely to be afforded little weight by the Tribunal.In particular, a witness who does not engage with material facts or issues that might detract from the view being expressed risks being regarded as an informed advocate for the case of one of the parties to the proceedings rather than an independent expert witness.

In my judgment Mr Jarvis is correct to say that Ms Harper’s reports are quite remarkable. In short, she maintains the views and opinions she expressed in her evidence before the Tribunal in 2014 and where those opinions are contrary to the country guidance that resulted, she either expresses disagreement or simply disregards the country guidance altogether.

She insists that some areas of Mogadishu “still harbour significant elements of the Islamist group Al Shabaab” whereas the Tribunal found that the withdrawal of Al Shabaab from the capital was complete and durable. At paragraph 6 of her first report she asserts as if it were an established fact that the appellant’s physical appearance would readily disclose the fact that he is of the Reer Hamar and so “would put him at immediate risk of ill-treatment as he would be perceived by others to be a member of a minority clan”. At paragraph 337 of MOJ & Ors the Tribunal rejected that view, finding that:

“The evidence establishes clearly that, in Mogadishu , there is no inter-clan violence taking place and no real risk of serious discriminatory treatment being experienced on the basis of clan. “

And in the headnote:

“There are no clan militias in Mogadishu, no clan violence, and no clan based discriminatory treatment, even for minority clan members.”

At paragraph 6.3 of her report, Ms Harper draws upon the World Directory of Minority Groups and Indigenous Peoples, in which a view was expressed that minority clans “have remained especially vulnerable, even in areas where stability has improved”. That, however, was based upon a report written in 2011 and so is simply worthless in informing a discussion of conditions in Mogadishu today.

Next, seeking to illustrate her view that minority clans continued to suffer “continued prejudice and disproportionate violence” she cites an incident of an attack upon a minority clan settlement in which people lost their lives. But as this occurred in Jowhar, 50 miles north of Mogadishu and took place in November 2013, it is impossible to see how that is relevant to an assessment of the situation of members of a minority clan living in Mogadishu, a place from which Al Shabaab have completed their withdrawal. Ms Harper does recognise this difficulty but concludes:

“Although this kind of violence, which specifically targets minority clans, has not to my knowledge occurred on any significant scale in Mogadishu, it is possible that it will do in the near future.”

This speculative view is based upon no sound evidential basis whatever. It is remarkable that the witness feels able to express such a view that requires for it to be accepted a departure from country guidance without offering anything even approaching a proper basis to do so. In my judgment this is not the expression of an expert view but a journalistic opinion by someone with personal knowledge of the city who speaks of what she expects to be the case, even if others have expressed a different view, and its significance is to demonstrate that very little weight can be placed upon this view expressed by the witness in this report.

Similarly, in the paragraphs that followed, Ms Harper speaks of the risks posed by clan militias in Mogadishu whereas the clear finding of the Tribunal in MOJ & Ors was that there were no longer any clan militias operating in the capital.

There are examples of Miss Harper simply disregarding the findings of the Tribunal as to conditions in Mogadishu and reiterating her own view, despite that having been rejected. At paragraph 7 of her first report Ms Harper says:

“I believe that Al Shabaab would try to execute or assassinate (the appellant) if it discovered he was an atheist.”

But the Tribunal found, in MOJ, that no such “executions” by Al Shabaab take place in Mogadishu. Miss Harper does not point to a single example of this having happened in the capital since Al Shabaab completed their withdrawal from the capital and so, once again, her opinion is wholly out of step with the position as it has been found to be and she offers no basis at all to depart from the findings of the Tribunal in this respect.

Ms Harper records in her report conversations with unidentified sources in Mogadishu who:

“displayed hostility to the idea of people with a history of criminal convictions being deported to Somalia…. This suggested a hostile predisposition towards such individuals from a wide range of society in Mogadishu. They said such individuals would be rejected by their families, if indeed they had families in Mogadishu. This would lead to their isolation; they may have to live in the streets. This might increase the likelihood of them joining Al Shabaab…”

This evidence chimes with her opinion as advanced in her evidence before the Tribunal in MOJ & Ors:

“Ms Harper said in oral evidence:

“If the family unit is there in Mogadishu, if that person was involved with criminal activities in the UK they may reject them. Some families live in igloos or smashed up buildings. The immediate family would I believe receive that person.””

In rejecting her evidence, the Tribunal said this:

“Ms Harper made clear that she disagreed with the evidence given by Dr Hoehne to the effect that an “ordinary” conviction in the United Kingdom would have little or no significance in Somalia, although offences involving drugs might be different. However, when invited to give any example of a returnee who upon return was shunned by relatives on this account she was unable to do so. Therefore, this is yet another example of an opinion being offered that is simply unsupported by any actual evidence of it occurring, being based instead upon what the witness believes would be the case.”

Addressing next the difficulty the appellant would experience in accessing a livelihood on return to Mogadishu, it was Ms Harper’s opinion, expressed at para 10.2 of her first report, that it would be extremely difficult for him to secure accommodation, food or employment:

“… because he has the physical appearance of a member of a minority clan, has little education and is not part of the Somali “middle class…”

Once again this flies in the face of the country guidance in place without any attempt being made to justify departure from it. In MOJ & Ors the Tribunal addressed this point directly:

“It is beyond doubt that there has been huge inward investment, large-scale construction projects and vibrant business activity. Land values are said to be “rocketing” and entrepreneurial members of the diaspora with access to funding are returning in significant numbers in the confident expectation of launching successful business projects. The question to be addressed is what, if any, benefit does this deliver for so called “ordinary returnees” who are not themselves wealthy businessmen or highly skilled professionals employed by such people. “

The conclusion reached concerning the view that economic opportunities were available only for “the elite”, at para 349, was this:

“This is a view that is not altogether easy to understand and we are unable to agree with it. The evidence is of substantial inward investment in construction projects and of entrepreneurs returning to Mogadishu to invest in business activity. In particular we heard evidence about hotels and restaurants and a resurgence of the hospitality industry as well as taxi businesses, bus services, drycleaners, electronics stores and so on. The evidence speaks of construction projects and improvements in the city’s infrastructure such as the installation of some solar powered street lighting. It does not, perhaps, need much in the way of direct evidence to conclude that jobs such as working as building labourers, waiters or drivers or assistants in retail outlets are unlikely to be filled by the tiny minority that represents “the elite”.

Ms Harper simply ignores this reasoning and so we do not know on what basis she departs from it.

There are many other examples of such difficulties in Ms Harper’s report. At paragraph 11.2 of her report she opines that from the moment the appellant arrives at Mogadishu airport he:

“… would be vulnerable to abuse or attack by criminals, militias, government troops, African Union soldiers and Al Shabaab. A returnee from Europe or the US would be presumed to have money or access to money through remittances, and would therefore be at risk of being robbed, or abducted or subjected to threats of violence for the purpose of extortion.”

Inevitably, citizens of Mogadishu will on occasion be the victims of crime just as they are in London or New York. However, Ms Harper offers no examples of this ever having happened in a manner attributable to the fact of a return from Europe. Once again, this is an example of Miss Harper saying what she thinks would happen rather than giving evidence of something that does generally happen. She attributes as her source for this observation “Current Anthropology, Embarking on an Anthropology of Removal by Nathalie Peutz, a PHD candidate in a work published in 2006. This was based upon fieldwork carried out as long ago as 2002.

At para 11 of her first report Ms Harper asserts that:

“Al Shabaab believes returnees from the West to be in a state of apostasy, and therefore subject to punishment. The group considers as a possible spy anyone returning from the West and executes those it finds guilty of spying.”

Yet again, this was her view before the Tribunal in MOJ & Ors which the Tribunal expressly rejected at para 374:

“We are satisfied that the evidence does not establish that “ordinary civilians” including diaspora returnees are targeted by anyone. Specifically, we are satisfied that the evidence does not establish that “ordinary civilians” including returnees, are targeted by Al Shabaab or the authorities or criminal elements. We are satisfied that it matters not that a returnee who has been absent for some considerable time would be recognisable as such by his dress, behaviour or language. “

It is not just what is in Ms Harper’s report that is remarkable but, given that she offers it as an objective view of current conditions it is remarkable for one particular omission. In August of 2015 Mogadishu hosted for the first time an International Book Fair. This was a 3-day event attended by a large number of people who travelled from many destinations to attend. The event, by all accounts, was a success and those involved were proud of what had been achieved. Yet the fact that there is no mention of this event in Ms Harper’s report constitutes a strong indication that she has sought not to emphasise any positive aspect of life in Mogadishu today.

It is not in doubt that she was aware of the event. We know that she was because her article for the BBC has attracted indignant complaints from those involved, because of the negative view expressed of an event that others considered to be an important success story for modern Mogadishu as it emerges from the problems of the past. The report produced by the respondent includes:

“Angry Somalia took on twitter #SomeTellMaryHarper after her article on Mogadishu International Book Fair dubbed “Somali authors defy militants” was published.

Somalis on twitter believe BBC Africa editor new story was biased and did not highlight the real environment in the recuperating country.”

Complaint was made also that Ms Harper included in the report of this event a photograph of “horrifying scenes at Mogadishu hotel attack earlier this year” when there was no suggestion from any source that the book fair event in fact attracted any adverse attention from Al Shabaab or anyone else [1].

The respondent points out that this was not the only omission from her report of something that might expected to be included. Given that a key issue in this appeal was the question of whether the appellant would be able to secure employment on return to Mogadishu, it is significant that laws have recently been passed restricting reliance on foreign labour in a bid to encourage a higher level of employment of young Somalis who will often be seeking lower grade employment. Evidence of this, which has been provided by the respondent, is not mentioned by Ms Harper.

In her supplemental report, addressing questions posed by the respondent, Ms Harper further addresses three topics: the availability of alcohol in Somalia as well as treatment for alcoholism; the likely response to atheism and to those returning after having acquired a history of criminal offending. In so doing she explained that she relied mainly upon mainly unidentified but “tried and tested” sources who she has worked with in the past in her career of journalism. But, as was observed by Mr Jarvis, the assessment of the reliability of a source is a task for the Tribunal and not for a witness offering evidence to it and, if the sources are not revealed, and not even the notes kept of any conversations with those sources are produced, it is hard to see that very much weight can be afforded to views founded upon information provided by such sources.

An example of this is to be found in what Ms Harper says about the absence of treatment for alcoholics. Although on this occasion the source is identified, a named doctor working at a Mogadishu hospital, as we do not know the questions asked of that person, nor the answers actually provided, it is impossible to understand what is meant by the reported response that this particular hospital does not offer “specialised” treatment for alcoholics. We simply do not know whether that means that no treatment at all is available or that there is no specific clinic for alcohol related conditions.

In this section of her supplementary report Ms Harper cites a comment made to her by another unidentified journalist in Mogadishu that “if you are drunk and you walk in the streets, children will come out and stone you to death”. Yet she points to not one single example of this ever having happened. In fact, her evidence that alcohol, although illegal, is available if one knows where to look and that young people are sometimes arrested by police for being drunk on the streets on Friday and Saturday nights when returning from parties and that there are areas of Mogadishu where it is known that alcoholics congregate to drink suggests that in fact people do not get stoned to death on the streets.

Dealing next with a question about the appellant’s prospects of employment in Mogadishu, Ms Harper says:

“There are few employment opportunities, and those that exist depend upon contacts, clan, family affiliation and marketable skills….

In my view it would be almost impossible for (the appellant) to find unskilled work in Mogadishu due to the tens of thousands of other people looking for similar employment, most of whom are long terms residents of the city with clan and family contacts…”

I will return to this issue below, when making an assessment of the appellant’s prospects of securing a livelihood, but it can be observed that in reaching the conclusion she does, Ms Harper has no regard to the vocational qualifications the appellant has acquired, including City and Guilds certificates in wall and floor tiling and a qualification in information technology. Nor does she have regard to the evidence, discussed in MOJ and Ors, that returnees are said to be taking jobs at the expense of long term residents who have never been away, or the evidence that many of the unemployed youth of Mogadishu are simply not looking for work, being content to live idle lives, while being in receipt of support from remittances from abroad, food and other aid available and, in some cases, rental income from agricultural land that they do not wish to work themselves.

Addressing next the risks faced by the appellant as an atheist, she quoted unnamed journalists as saying that this would amount to “a death penalty”. She provides one example of Al Shabaab having executed a man “for allegedly insulting the prophet”. But, although this took place in April 2015, Miss Harper does not say that this was an incident that occurred not in Mogadishu but in Jamame in the Lower Juba region which is some distance away from Mogadishu and an area in which, unlike in the capital, Al Shabaab maintain a physical presence. Therefore, it is impossible to see how this can, properly, be relied upon as evidence of what might occur in Mogadishu.

As for the risk from the general community, Ms Harper says that if the appellant refused to pray or to go to the mosque:

“… I believe people in Mogadishu would become very suspicious of him and possibly accuse him of being an atheist or non believer.”

The difficulty with this is that, once again, it is an entirely speculative view unsupported by any evidential foundation. Mr Gilbert confirmed that nothing is disclosed by the evidence to indicate that residents of Mogadishu are under any obligation to attend mosque. Indeed, there is a very significant Kenyan workforce present in Mogadishu and that country is a predominantly Christian one and so there will be many people who will not attend any mosque.

For all of these reasons, I conclude that I am able to attach little weight to Ms Harper’s report as the evidence of an expert witness. Her report lacks the objectivity demanded and her review of the country information available is selective. Where she expresses opinions that conflict with current country guidance, she offers no basis upon which her own opinions should properly be accepted to prevail. Therefore, this evidence stands as the view of an experienced journalist with personal experience of the city from her regular visits. It is not to be disregarded, but considered in the round with all of the other evidence available and in the light of current country guidance.